R v Home Secretary ex parte Bentley [1994] QB 349

• Plaintiff sought a posthumous pardon for her mentally disabled brother who was convicted of murder and hung on the Home Secretary’s order despite the jury’s recommendation of granting mercy.

• Home Secretary decided not to grant posthumous pardon (i.e. commuting death penalty to life imprisonment), on the grounds that as a policy the courts would only grant pardons where there was technical as well as moral innocence, which was not the case here.

• CA held that it was not right to make a formal order regarding the Home Secretary’s decision but that it would simply ask the Home Secretary to reconsider (Which he later did and granted a partial pardon). 

Watkins LJ

• Sometimes there will be grounds for reviewing the decision, and this cannot simply be ousted by invoking the concept of “prerogative”. For example, if the prerogative was exercised on the basis of sex, race or religion the courts would be able to grant review.

• He says that the criteria developed about when a pardon would be granted was pure policy and not justiciable (What? Precedent above shows that where policy prevents a true exercise of discretion then it is reviewable).

• He said that the then Home Secretary failed to realise that he was capable of granting many types of pardon, e.g. conditional pardon etc and only considered outright pardon, which is a reviewable failure.

• He said that in these circumstances “we do not think it would be right to make any formal order” but invited the Home Secretary to consider partial pardons.